On appeal from the Passaic County Circuit Court.
For the plaintiff-respondent, Charles C. Stalter.
For the defendant-appellant, Edward R. McGlynn.
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
COLIE, J. The plaintiff was visiting at the home of friends on the evening of July 18th, 1940. During the evening, the
suggestion was made that they repair to an eating-place, some distance away, for refreshments. Helen Gurtman, the defendant, was the only one in the group with an automobile. At the request of Miss Rachels, one of the party, Mrs. Gurtman drove her to Passaic to seek out a male friend of Miss Rachels' and advise him of the plan to have refreshments. Mrs. Gurthman said that upon her return she would blow her horn to signify her readiness to set out for the eating-place. After locating the young man, Mrs. Gurtman returned and blew her horn and the three young ladies came out of the house.
The automobile was a two-door coupe or cabriolet having the conventional type of permanent front seat. In the rear, however, there were two "opera" seats, which, when not in use, folded back so that they were flush with the rear wall or upholstery of the interior. Miss Loeb preceded her companions and entered the car first. To do so, it was necessary for her to push the back of the front seat forward, which she did and entered the car in what may be described as a sidewise position, facing toward the front. It was dark, she moved over behind the driver in a sidling manner to make room for her companion and attempted to seat herself. The opera seat being up, she fell to the floor, striking an iron bar and sustaining painful injuries which confined her to bed for about six weeks. As she struck, she screamed and the defendant, Mrs. Gurtman, said: "Oh, my God, I forgot to tell her the seats were up."
Motions were made on behalf of the defendant for a nonsuit and for a direction of verdict, both of which were denied. The jury returned a verdict in favor of the plaintiff. The grounds of appeal are denial of the aforementioned motions and alleged error in the court's charge.
The theory upon which the case was tried was that the defendant was negligent in failing to warn her guest that a latent and concealed peril existed because the seats were not of the conventional type but were disappearing seats which folded flush with the body of the car.
There was evidence from which the jury could find that the plaintiff was in the defendant's car by ...